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SIU Director’s Report - Case # 18-OVI-151

Contents:

News Releases for this Case:

French:

Mandate of the SIU

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Information Restrictions

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:
  • Confidential investigative techniques and procedures used by law enforcement agencies; and
  • Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding. 

Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:
  • Subject Officer name(s);
  • Witness Officer name(s);
  • Civilian Witness name(s);
  • Location information; 
  • Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and 
  • Other identifiers which are likely to reveal personal information about individuals involved in the investigation.


Personal Health Information Protection Act, 2004 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

Mandate Engaged

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the serious injury sustained by a 25-year-old male (the Complainant) following a police pursuit on May 21, 2018.

The Investigation

Notification of the SIU

At approximately 8:40 p.m. on May 21, 2018, the Guelph Police Service (GPS) notified the SIU that the 25-year-old Complainant sustained a suspected fractured clavicle, after losing control of a motorcycle while being pursued by a GPS police officer.

According to the GPS, at approximately 7:58 p.m. on that same date, police officers were pursuing a motorcycle on Brant Avenue when the motorcyclist, the Complainant, lost control at the intersection of Brant Avenue and Delaware Avenue in the City of Guelph.

The Complainant was taken to hospital. At the time of the notification, no injuries had yet been confirmed by X-rays, but paramedics believed that the Complainant might have suffered a fractured clavicle.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 2
Number of SIU Collision Reconstructionist assigned: 1

The SIU immediately dispatched three investigators, two forensic identification investigators, and a collision reconstructionist.

Complainant:

25-year-old male interviewed, medical records obtained and reviewed

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed

Witness Officers

WO #1 Notes reviewed, interview deemed not necessary
WO #2 Notes reviewed, interview deemed not necessary
WO #3 Notes reviewed, interview deemed not necessary


The SIU reviewed the notebook entries of the witness officers. None of those police officers were involved in the efforts to stop the Complainant. Given the information obtained from the civilian witnesses and from the Complainant, it was determined that there was no need to interview these officers.

Subject Officers

The SO Interviewed, but declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

Brant Avenue is an undivided residential street that is oriented northeast to southwest (north to south for the purposes of this report) with traffic permitted in both directions. There are single family dwellings along either side of the roadway. Delaware Avenue is oriented northwest to southeast (west to east for the purposes of this report), terminating at the west end in a T- shaped intersection at Brant Avenue. At the time of this incident, the roads were dry and visibility was clear.

Brant Avenue Public School is located on Brant Avenue, approximately 250 metres north of Delaware Avenue.

Behind Brant Avenue Public School, there is the schoolyard and then a park, Brant Park. Together, the schoolyard and the park constitute a combined green space approximately 250 metres long.

At the intersection of Brant Avenue and Delaware Avenue, the SO’s police cruiser was found on Delaware Avenue, facing south. A trail-style (dirt bike) motorcycle was found on its left side, against the south curb of Delaware Avenue. The motorcycle did not have a licence plate. There was scraping damage to the left foot pegs and along the left side of the motorcycle.

There were a number of scrape marks in the asphalt of the intersection, from north to south in orientation.

Small flecks of paint on the bumper of the SO’s police cruiser at first appeared to be evidence of contact but were, on closer examination, determined to be flecks of what appeared to be road marking paint. There was no evidence of contact between the Complainant’s motorcycle and the SO’s cruiser.

The crashed motorcycle and the police vehicle involved in the pursuit.

The crash scene at the intersection of Brant and Delaware Avenues.
 
The crashed motorcycle and the police vehicle involved in the pursuit. 

 The crashed motorcycle and the police vehicle involved in the pursuit.

Scene Diagram

Scene Diagram

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Expert Evidence

Opinion of the SIU Collision Reconstructionist

The Complainant was not licensed to operate motorcycles, and so his skill level in operating motorcycles is unclear.

The SIU Collision Reconstructionist calculated the critical curve speed (the speed at which a motor vehicle could safely manoeuvre the curve) to be 32 km/h to 36 km/h. Also, based on the road conditions at the time, the Complainant’s slide to stop speed (the speed that he would have lost due to road friction as the motorcycle slid on the roadway) was 20 km/h to 26 km/h. The SIU Collision Reconstructionist believed that the Complainant had exceeded the critical curve speed.

The Complainant either exceeded the critical curve speed when turning from Brant Avenue to Delaware Avenue, or he simply miscalculated the needed lean angle due to inexperience, and the motorcycle fell to the pavement on its left side.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but none were located.

Communications Recordings

The communications recordings received by the SIU did not include any recording of the SO reporting that he was trying to stop a motorcycle. The recordings received by the SIU started with the SO calling the communications centre.

The next recording from the SO was him reporting that the motorcycle identified in an e-mail from another police officer had just gone down at Delaware Avenue and Brant Avenue. The SO stated he would be out on foot.

The SO then reported that he had the Complainant at Brant Avenue and Delaware Avenue. The SO reported that the Complainant had been on a dirt bike. The SO stated he was not chasing the Complainant, but that the Complainant blew through Brant Avenue School and took a corner hard and he laid it (the motorcycle) out (i.e. crashed the motorcycle). The SO then reported that the Complainant appeared to have suffered a dislocated shoulder.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the GPS:

  • Communications Recordings;
  • The Computer Aided Dispatch (CAD) Event Details Report;
  • GPS Bulletin regarding a stolen motorcycle - May 21, 2018;
  • GPS E-mail regarding a stolen motorcycle (initialed by the SO during his SIU interview);
  • Notes of WO #s 1-3; and
  • GPS Procedure: Suspect Apprehension Pursuits.

The SIU obtained and reviewed the following materials and documents from other sources:

  • Medical Records of the Complainant related to this incident, obtained with his consent.

Incident Narrative

In the evening of May 21, 2018, the SO of the GPS, who was on routine patrol in the City of Guelph, observed a motorcycle being operated by the Complainant. The SO had recently received a notification that a stolen motorcycle was being sought by the GPS; the description of the stolen motorcycle in the notification matched that of the motorcycle being operated by the Complainant. The SO activated his emergency lighting system and attempted to stop the motorcycle in order to determine whether or not it was the motorcycle that had been reported stolen. Rather than stopping, the Complainant sped off and was observed by four independent civilian witnesses travelling at a high rate of speed, estimated at between 75 and 80 km/h. At the intersection of Brant and Delaware Avenues, the Complainant took the turn too quickly and/or failed to properly lean into the turn and lost control of the motorcycle, causing it to slip out from under him. The Complainant then slid across the roadway and struck the opposite curb. He suffered a dislocated right shoulder in the process. The SO, who was following the motorcycle, was observed to be travelling at a much lesser rate of speed. He slowed and almost stopped at a stop sign, which the Complainant went through at high speed without stopping. At no time did the SO’s police vehicle ever come into contact with the Complainant’s vehicle; rather, it appeared to follow at a distance, arriving at the collision scene seconds after the Complainant had already crashed. 

The police radio transmissions recording reveals the SO calling in to the dispatcher at 7:58 p.m. and reporting, “That uh, e-mail that just came out from (an undesignated police officer) about that blue and white bike, that dirt bike … Oh! It just went down. Delaware and Brant Avenue. Now he’s gonna be on foot.” This recording appears to confirm that in the ten second transmission from the SO, and while he was still first reporting his sighting of the motorcycle, it lost control and crashed, indicating that the pursuit was extremely short-lived. Indeed, on all of the evidence, including that of the independent civilian witnesses, the pursuit appears to have occurred over a distance of no more than 250 metres and a matter of seconds.

At the time of the incident, the weather was clear, the roads were dry, visibility was good, and traffic was light, with no other motor vehicles or pedestrians on Brant Avenue at the time.

Nature of Injuries / Treatment

The Complainant sustained a dislocated right shoulder.

Relevant Legislation

Section 249, Criminal Code -- Dangerous operation of motor vehicle causing death/bodily harm

249    (1) Every one commits an offence who operates
(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place

(3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Analysis and Director's Decision

The offence that arises for consideration in this case is that of dangerous driving contrary to section 249 (now section 320.13) of the Criminal Code. The offence is predicated on conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances: R. v. Beatty, [2008] 1 S.C.R. 49. 

While there are elements of the SO’s conduct which may have technically run afoul of the Highway Traffic Act, I am satisfied on balance that the manner in which the officer operated his police vehicle fell within the limits of care prescribed by the criminal law. I begin by noting that the SO had clear grounds to believe the Complainant was in possession of a stolen motorcycle and was therefore within his rights to initiate a pursuit. With respect to the speed at which the officer operated his cruiser, it was observed by four independent civilian witnesses as being far less than that of the motorcycle operated by the Complainant. While the officer’s speed, which on the evidence appears never to have exceeded 50 km/h, may have violated the limit in the area of a school zone that was traversed, there is no suggestion that it actually endangered anyone in the vicinity. The SO’s conduct in relation to his speed is further attenuated by section 128(13)(b) of the HTA which, while it does not provide officers carte blanche to exceed the speed limit without regard to public safety considerations, does allow them to speed when in the lawful performance of their duties and it is safe to do so. It is also evident that the officer failed to come to a stop before proceeding through a stop sign at the intersection of Brant Avenue and Montana Road. Pursuant to section 136(1)(a) of the HTA, the officer was obliged to come to a complete stop before travelling safely through the intersection, and he ought to have done so. That said, the civilian witnesses observed him slow and almost stop, or to carry out a ‘rolling stop’, before entering the intersection after ensuring that it was safe to do so. It is also worth noting that the SO does not appear to have put undue pressure on the Complainant in that he was at all times a comfortable distance behind the motorcycle and travelling at a far lesser speed, allowing the Complainant every opportunity to reduce his speed and adopt a safer course. Indeed, the evidence indicates that the SO discontinued the pursuit shortly after he observed the Complainant accelerate through the stop sign at Montana Road. Finally, the SO’s emergency lighting was on during the brief pursuit.

On this record, in the context of the SO’s extremely short-lived engagement in this matter – spanning a mere matter of seconds over no more than about 250 metres during which conditions were dry and visibility good - I have no reasonable grounds to believe that the officer either caused or contributed to the collision in question in any fashion that could attract criminal liability. Consequently, this file is closed.


Date: April 16, 2019



Joseph Martino
Interim Director
Special Investigations Unit